There's a Darker Reason Trump Is Going After Those Law Firms

New York Times

15-05-2025

Every year, The American Lawyer publishes a scorecard ranking big law firms by the amount of pro bono service they provide. In 2024 the top firms on the list were Jenner & Block, Covington & Burling and WilmerHale, whose lawyers collectively donated over 400,000 hours to cases advancing the rights of L.G.B.T.Q. people, helping immigrants gain asylum and fighting voter disenfranchisement, among other causes.
These firms now top a different list: law firms targeted by the Trump administration's executive orders. This is no accident. These orders use the pretense of punishing Mr. Trump's perceived enemies to pursue the far more comprehensive goal of controlling pro bono work, the lifeblood of legal aid and public-interest law organizations, which depend on pro bono support to promote access to justice and defend the values of liberal democracy. This targeting replaces the ideal of pro bono publico, literally 'for the public good,' with pro bono Trump.
I've studied pro bono work around the world, and the American model — in which prominent firms devote enormous amounts of lawyer time, which would otherwise be billed at rates surpassing $1,000 per hour, to litigate cases against the government — is unique. It's also powerful. That model is behind some of the most consequential Supreme Court cases of the past quarter-century.
Perkins Coie worked pro bono for Salim Ahmed Hamdan, Osama bin Laden's driver, helping win a 2006 ruling that military commissions at Guantánamo Bay violated federal and international law. WilmerHale and Covington & Burling contributed tens of thousands of hours to petitioners in Boumediene v. Bush, holding that Guantánamo detainees were entitled to habeas corpus. The 2015 case Obergefell v. Hodges, which established the right of same-sex couples to marry, was argued by a lawyer at Ropes & Gray and was supported by an amicus brief filed by Munger, Tolles & Olson. During President Trump's first term, prestigious firms helped immigrants targeted by the Muslim travel ban and filed amicus briefs in the Supreme Court case challenging it.
And this is only the tip of the iceberg. Overall, American lawyers contribute over 35 million hours of free counsel annually to clients in need, representing them in cases involving domestic violence, illegal evictions, family separation and more. These efforts are led by lawyers in the nation's largest firms, with members of the top American Lawyer firms donating over five million hours last year.
Why do big law firms do it? It's not just charity. While firm leaders care deeply about professional service and make sacrifices to do it well, they also follow what is referred to as the business case for pro bono. Firms use unpaid work in part to burnish their prestige and to buoy their positions in the influential American Lawyer rankings. That helps them to attract and retain the best lawyers — and the biggest corporate clients, which often select firms whose pro bono advances the clients' corporate social responsibilities.
But the logic of the business case also imposes constraints. It means that firms generally avoid pro bono matters that even appear to conflict with the interests of clients — and decline pro bono litigation in areas like employment and environmental law on the purely financial grounds that paying clients can walk away if their firms take legal positions viewed as limiting corporate rights. It's that pain point that the Trump administration has used to exert control, by making the case that the old model of pro bono is no longer good for law firms' business.
Targeting pro bono work, a longtime goal of the conservative legal movement, has already paid handsome dividends. Nine of the nation's premier law firms — including the mergers and acquisitions heavy hitters Skadden, Kirkland & Ellis and Latham & Watkins — signed agreements to provide a collective $940 million in free work. As Mr. Trump summarized the Skadden deal, 'Pro bono Legal Services' are to be provided 'during the Trump administration and beyond, to causes that the President' and the firm 'both support.'
Precisely what this free work will look like is an open question. Firm leaders have claimed ultimate authority to, as W. Neil Eggleston of Kirkland put it, 'determine which matters we take on — both pro bono and otherwise.' Mr. Trump has asserted a contrary view, declaring that the agreements effectively create a pro bono war chest to conduct government business, such as negotiating trade deals and supporting the so-called Department of Government Efficiency. The recent executive order called Strengthening and Unleashing America's Law Enforcement pointed to another potential repository of pro-Trump work by instructing the attorney general to promote 'the use of private-sector pro bono assistance' for police officers accused of violating civil rights.
These proposals turn the meaning of pro bono on its head by mobilizing free lawyers on behalf of government officials accused of engaging in abuse, rather than vulnerable members of the community who suffer at the government's hand.
The law firm agreements harm legitimate pro bono causes in several ways. First, they will absorb firms' capacity for unpaid work, leaving less for people in need. Second, they could introduce significant conflicts of interest between government-sanctioned clients and pro bono matters against the government. Even in the absence of conflicts, it seems safe to assume that the administration will not stand by if firms seek to defend individuals from illegal government action — particularly immigrants detained and deported without due process. This much the president made clear in his call to punish 'the immigration bar and powerful Big Law pro bono practices' accused of vague 'abuses of the legal system' in 'litigating against the federal government.' The president could tie firms up in ancillary disputes, a stalling strategy he successfully deployed in criminal cases against him, or threaten new orders. This threat has a deliberately powerful chilling effect. Already, many firms are declining to take on cases that challenge the administration's policies. That's not a side effect of the crackdown. It was the purpose all along.